Saturday, September 28, 2002

[Sasha Volokh,
10:42 AM]
GUNS AND HAZING: My Target Shooting Club at Harvard Law School now has over 200 members, of whom about 80% are law students -- that's about one law student in 12. Meanwhile, Massachusetts law and HLS policy require me not only to tell all my members about the Massachusetts anti-hazing law but also to make sure they all understand its requirements. Well, there have apparently been hazing problems around here (involving a death at an MIT fraternity) but it does seem kind of ridiculous as applied to me and pretty much all of the clubs at HLS, so here's an excerpt of what I e-mailed my members as I sent them the text of the law:

What's hazing? According to Mass. Gen. Laws ch. 269, ss 17-18 (attached below), hazing is "any conduct or method of initiation into any student organization . . . which wilfully or recklessly endangers the physical or mental health of any student or other person." Well, as you can see, as a threshold matter, hazing requires initiation, and as you know, this club has no initiation! All you needed to do was give me your e-mail address! Which, I'm sure you'll agree, does not by itself endanger your or anyone else's physical or mental health either wilfully or recklessly. Therefore, the anti-hazing law has no potential applicability to this club.

By replying to this e-mail, you're telling me that you understand the hazing law and acknowledge your obligation to comply with sections 17 and 18. The way I see it, if you understand that the hazing law has no conceivable applicability to this club (see argument above), that's comprehension enough.

But, see, this is onerous! I've only gotten a bit over 120 replies in the last three days. There's no way I can truthfully tell the administration (as section 19 requires me to do) that everyone in the club understands the law -- though since the law doesn't apply to this club, I could say that everyone in the club understands (or, at worst, overestimates) the requirements of the law as they apply to the club. And I think I'm actually complying with the Massachusetts law more than most other organizations, which probably pretty much ignore the mandate.

[Sasha Volokh,
10:30 AM]
PLEASED TO AGREE WITH MARK KLEIMAN: I haven't been posting for a few weeks -- actually thought it would be a good idea to do some schoolwork. But here's an excerpt from an article by Mark Kleiman, which is consistent with what I've written on accountability in prisons and possibilities for privatization:

[One cause of New York City's drop in crime] was the bold announcement by Police Commissioner Bill Bratton that he was willing to be held quantitatively accountable for crime reduction. Putting his own reputation on the line -- and betting it on measurable results rather than on a laundry list of specific policies or organizational changes -- enabled Bratton to hold his subordinates similarly accountable. . . .

For some reason, no one seems to have thought of extending this accountability revolution to corrections agencies. Yet holding corrections officials accountable for recidivism among their probationers, parolees, and prison alumni is more obviously justified than holding the police responsible for the overall crime rate. Many things influence the crime rate in a city beyond the effectiveness of its police department. But if arrests for serious new crimes are much less frequent among probationers in one probation office than among similar probationers in another office, or if the graduates of one medium-security prison are much more likely to be back inside within six months than the graduates of another, then the worse-performing institution might have something to learn from the better-performing institution.

Why don't private prisons do better? They're not required to:

Perhaps surprisingly, the private prison industry has utterly failed to demonstrate either cost savings or reduced recidivism rates, other than by selecting the least-cost, least-likely-to-repeat offenders. Recidivism ought to be an easy case for incentive contracting, but that isn't the way private-prison contracts are drawn.

At best, contracts “represent potentially useful accountability instruments [and] vehicles for achieving public law values, such as fairness, openness, and accountability.” Private prison contracts should have specific terms, graduated penalties, and strong oversight by a “contract manager” working for the public agency; they should require private prisons to “observe minimal administrative procedures such as notice and hearing requirements,” and perhaps explicitly give inmates or surrounding communities third-party beneficiary rights, which would allow oversight through contract litigation when government oversight fails. States could also require, as contractual terms, compliance with American Correctional Association and National Commission of Correctional Health Care standards.

Moreover, states could mandate that private prisons provide the same training that is required of public prison guards, though requiring certain inputs is presumptively less effective than looking to outcomes where these are measurable. Contracts could require that private firms carry civil rights liability and other insurance; that they disclose conflicts of interest; that they allow access to records and entry to the facility by inspectors; or that they be independently monitored or audited by certified professionals. Finally, contracts could tailor termination rights and provide for easy amendment of contractual terms. In short, contract designers can be highly creative -- and thorough -- in writing accountability into contractual terms.

Most basically, corrections departments should move toward performance-based contracts. Ideally, performance-based contracts should “clearly spell out the desired end result” but leave the choice of method to the contractor, who should have “as much freedom as possible in figuring out how to best meet government’s performance objective.” These contracts also structure contractor payments to encourage the desired results, rewarding the contractor for improvements and penalizing it for poor performance or rising costs.

This approach seems feasible for corrections. The American Correctional Association is revising its accreditation standards to include performance measures, and the Office of Juvenile Justice and Delinquency Prevention is developing performance-based standards for juvenile correctional facilities. Performance measures for prisons could include process measures such as the number of educational or vocational programs, or outcome measures such as the Logan quality of confinement index, the number of assaults, or the recidivism rate. Governments could even require that contractors pay for elements that are often externalized, such as the cost of escapes. Because no single statistic adequately captures “quality,” and because focusing on any single measure could have perverse effects, performance-based contracts should tie compensation to a large and rich set of variables.

My emphasis is different than Mark's (Mark says in his article that we should make public prisons work better rather than focus on contracting out), but in spirit we're consistent. For good articles on the subject, see Jody Freeman, The Contracting State, 28 Fla. St. U. L. Rev. 155 (2000), and William D. Eggers, Performance-Based Contracting: Designing State-of-the-Art Contract Administration and Monitoring Systems (Reason Public Policy Inst., How-To Guide No. 17, 1997). Thanks to InstaPundit for the link.

Friday, September 27, 2002

[Eugene Volokh,
2:21 PM]
GREAT CHRISTOPHER HITCHENS PIECE IN THE NATION. It covers several important points, but here's one that struck me as particularly worth noting:

I suppose I can just about bear to watch the "inspections" pantomime a second time. But what I cannot bear is the sight of French and Russian diplomats posing and smirking with Naji Sabry, Iraq's foreign minister, or with Tariq Aziz. I used to know Naji and I know that two of his brothers, Mohammed and Shukri, were imprisoned and tortured by Saddam Hussein -- -in Mohammed's case, tortured to death. The son of Deputy Prime Minister Tariq Aziz was sentenced to twenty-two years of imprisonment last year; he has since been released and rearrested and released again, partly no doubt to show who is in charge. Another former friend of mine, Mazen Zahawi, was Saddam Hussein's interpreter until shortly after the Gulf War, when he was foully murdered and then denounced as a homosexual. I have known many regimes where stories of murder and disappearance are the common talk among the opposition; the Iraqi despotism is salient in that such horrors are also routine among its functionaries. Saddam Hussein likes to use as envoys the men he has morally destroyed; men who are sick with fear and humiliation, and whose families are hostages.

I've often heard people speculate that Iraqis might love Hussein, and might rise up against us if we come to overthrow him. I suppose that's possible -- I'm not an expert on Iraqi public opinion, and given that the Iraqi public is surely keeping its opinion to itself (or at least that part of the Iraqi public that's still alive), I doubt that there are any such experts to be found. But this is not a regime that's likely to inspire loyalty, either in higher-ups or in the man on the street, especially since I suspect that what Hussein does to his henchmen (and I've also heard stories of Hussein forcing his subordin
tes to divorce their wives so that Hussein can briefly marry them), his henchmen likewise do to the public.

This means that if we try to do things by half measures, people will be unlikely to rise against Hussein -- they know that if their rising will fail, the results will be breathtakingly awful, for them and for their families. But if we attack with overwhelming might, those who are outside Hussein's clutches, and who know they won't fall back into his clutches, will be very glad to be free of him. Will they love us for it? Gratitude is not the most reliable of human emotions. But I suspect that they won't wage a guerilla war to try to keep him in power.

[Eugene Volokh,
1:58 PM]
REJECTED BECAUSE OF THEIR RACE: "The applicants [for a UCLA student council judicial board] -- Mark Belgen, Maegen Clark, Michael Filipiak and Owen Paun -- were rejected despite no objections to their skills for the positions." Why then? Because they were white, at least according to Daily Bruin. Not even a pretense of "race as a small plus factor among many other factors"; just flat out exclusion simply because of these people's race. (I've always thought that "plus-factor" discrimination was still discrimination, and still improper, but some defenders of race preferences claim to see it as more acceptable.)

This is a clear violation of California's Prop. 209 color-blindness initiative, it seems to me, and a very likely violation of Title VI of the Civil Rights Act of 1964 and the federal Equal Protection Clause. Thanks to my friend Jack Schaedel for pointing me to this story, and to InstaPundit and The Angry Clam for the link.

[Eugene Volokh,
8:15 AM]
WEAPONS OF MASS DESTRUCTION VS. BIG WEAPONS OF NON-MASS DESTRUCTION: Reader Stephen Marsh sent an intriguing message that I thought was worth quoting in its entirety. I'm not sure I fully agree with it (for instance, I would suspect that the fusion weapons exception also extends to fission weapons, and I think that what this about anthrax might not be extendable to, say, smallpox, though I guess no-one can know for sure), but I think it makes some points that are much worth thinking about:

I had a wonderful morning the other day with a [professor who has expertise on this subject -- EV]. Her personal thought was that we were spending too much time and money on worrying about biological and chemical weapons, which was my predilection. Of course the political cost of being wrong is higher, but for the most part, the bioweapon attacks we have seen would have been cheaper and harmed more people as letter bombs, the nerve gas in Tokyo would have killed more if they had just lit the canisters on fire.

For the most part, dollar for dollar, weapons of mass destruction are not as effective as conventional weapons. There are a few exceptions to this general rule.

First, in pure military endeavors, the sudden impact of tactical nuclear (pronounced either way) weapons can theoretically have a determinative effect. The doctrine behind the theory is pretty solid. The book Tactical Weapons in Land Combat is an excellent read on the subject and was declassified.

Second, where fusion weapons are being used, when cost and success of projection are factored in, they can cost less than traditional bombing.

Third, where the target is small and delivery/projection issues are large. Israel is an excellent example. The ability of the Arab nations to project force by conventional artillery and air bombardment is minimal. Israel is very small (nightly news ought to emphasize the scale by superimposing Israel on a map of a different American Metroplex once or twice a week, every week. It would help people understand the issues better to realize it is a smaller area than the Dallas-Fort Worth axis, smaller than Los Angeles County, smaller than Chicago and environs, smaller than New York and suburbs, etc.).

Saddam would have been much better served if he had spent the money buying portable disposable anti-tank missile launchers (of the same category as the LAW missile) and just provided them to the PLO. Suicide bombers with LAWs would have an impact far beyond anything currently seen.

Most ABC weapons programs are a waste of time and money. Bang for the buck they are an incredible waste. Most uses of ABC weapons have resulted in the parties going back to conventional weapons. People forget that Iraq used chemical weapons against Iran in the swamps. By later engagements they had gone back to conventional weapons. Hitler had large stockpiles of chemical agents. His only successes in deploying them came in concentration camps. Battlefield use turned out to be a waste of resources.

Anthrax has so far killed only elderly people with respiratory systems severely compromised by smoking. The largest injury to the population has been the latex allergies that people have suffered from the gloves. Imagine if seat belts killed more people by causing rashes than were saved in automobile collisions.

Sure, chemical and biological agents offer the promise and hope of massive successes (such as those had by Cortez), easy delivery and low costs. The reality is that so far they have been harder to deliver than conventional weapons, poor impact, and high costs. One could do better by mailing cheesecakes to targets and hoping the fat kills them.

As for nuclear weapons, the delivery systems have been very flawed. The Russians use the same technology for their missles as we use for our space shuttles. Ask yourself how often they keep them from being exposed to freezing temperatures. Which is the real reason they oppose the limited Bush ABM measures. The probably don't have an active throw weight backed by more than three or four launch capable missles at any one time.

This doesn't affect my judgment about the need for going after Hussein, since my my chief pragmatic worry is his nuclear weapons program. But these issues are important to think about it when we're concentrating on civil defense priorities.

UPDATE: Gary Farber points out, quite soundly, that these arguments shouldn't lead us to ignore the danger of chemical and biological weapons. I think there's much to what he says -- I think some overstate the danger of such weapons and some understate it.

I suppose that it's popular in the blogosphere to give awards. Maybe we should think of a name for the week's Stupidest Comment on the Middle East. As soon as someone names it, I have a candidate: Nelson Mandela, an indisputably great man who a couple of weeks ago made an indisputably ridiculous argument.

Mandela, not surprisingly, opposes military action against Iraq -- but hardly seems enthusiastic about inspectors, either. Why? Well, listen to what he said in his interview with Newsweek.

What we know is that Israel has weapons of mass destruction. Nobody talks about that. Why should there be one standard for one country, especially because it is black, and another one for another country, Israel, that is white.

This analysis is so grotesque on so many levels it's hard to know where to start. Let's see: maybe we don't worry about Israel using its weapons of mass destruction because it never has done so, whereas Iraq has. Maybe we're less concerned about Israel because Israel doesn't have this tendency of invading every single one of its neighbors on a regular basis. (And don't squawk about Lebanon -- that may have been foolish, but it was certainly in self-defense.). Maybe it's less of a concern because Israel is a liberal democracy, not the personal fiefdom of a psychotic dictator.

But of course Mandela's greatest absurdity is his crude racialism. As an empirical matter, Mandela is simply wrong: what exactly is it about Iraqis that makes them "black"? Or Israelis that makes them "white"? Tell 100,000 Ethiopian Jewish Israelis that they aren't black--or the millions of Israeli Jews from Arab countries. On the other side, Tariq Aziz could probably pass for white in many places. Plop Saddam Hussein down in the middle of an Italian-American or community, and he wouldn't stand out (at least physically). Do we really want to be counting melanin cells here?

More importantly, however, Mandela's statement points to the way in which race has been socially constructed in the Middle East conflict, and how this has affected political perceptions. Iraq is a "black" country, and thus we can ignore its monstrous brutality and violence; Israel is "white", and thus we can ignore its (however flawed) democratic character. Mandela is not alone in this: I suspect that many on the left essentially share his outlook. They simply cannot understand politics without racializing it. And once they do racialize it, no further mental energy needs to be expended.

This explains much of the European left's infatuation with Arafat, even as he uses their money to support his web of terror. The Palestinians, too, are "black," thus they are right. Facts are simply unimportant. Add up the melanin (however badly), and reach a result.

Of course race does matter -- often. And of course globally there are racial castes. But as someone who identifies with social democracy, it is painful -- and maddening, and outrageous -- that people who claim to support racial equality become impervious to facts as soon as they perceive a racial angle. That's an easy and straightforward way to approach politics. It is also reason for ignoring those who do it. And that especially includes Nelson Mandela.

[Eugene Volokh,
1:18 AM]
THE SECOND AMENDMENT: Slate's Dahlia Lithwick is always readable, and often quite incisive -- but her latest column unfortunately falls far below her usually high standards. I'm about to turn in, and will then be on the road during the day, so I can't cover all the details; but let me at least give two examples.

The claim at the heart of the piece is that Ashcroft has "decided -- without precedent, without procedural grounds, and without the legal authority to do so -- to simply rewrite decades' worth of gun laws." Now Attorneys General do have considerable flexibility in interpreting the Constitution that they're supposed to enforce, especially if the precedents are ambiguous; but Ashcroft's position, the article suggests, is so groundless that it's just patently outside his authority to take.

Well, any position can be made to seem groundless if one simply doesn't cite some of the strongest arguments in its defense. Take, for instance, the argument that "The Supreme Court settled [the individual right vs. collective right question] in the 1939 case of United States v. Miller, in which it upheld a statute requiring the registration of certain types of guns (machine guns and sawed-off rifles, sawed-off shotguns and silencers) on the theory that such guns bore 'no reasonable relationship to the preservation or efficiency of a well regulated militia.'" This, the article claims, resolves the debate in favor of the Second Amendment securing a "'collective right' belonging only to members of state militias, such as today's National Guard."

Oddly omitted, however, is another quote from Miller:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Hmm; maybe the "militia" that the Court was talking about wasn't the National Guard at all -- maybe it was the armed citizenry, which does suggest the right was possessed by individuals, even though its purpose was the collective good (much like the freedom of the press is possessed by individual members of the press, though the purpose of the freedom may largely be the protection of democracy). Perhaps Miller is considerably more ambiguous than the piece makes it out to be, and perhaps Ashcroft's position is thus not inconsistent with the Court's view. But the Slate article doesn't even hint to the reader that such an ambiguity might exist.

Or consider the argument that Ashcroft is being hopelessly inconsistent -- evidence of his disingenuousness, I take it (the article calls this a "double-constitutional back flip") -- in saying that the Second Amendment secures an individual right, but then defending many restrictions on this right: "If Ashcroft is correct in stating that the right to a gun is personal, like the right to free speech or the right to vote, then he should also take the constitutional position that only the very narrowest kinds of regulation would survive the scrutiny of the courts." Sounds pretty damning, no?

Except the article doesn't tell readers that many personal rights are subject to many more than "the very narrowest kinds of regulation." The Fourth Amendment, for instance, secures a clearly personal right to be free from unreasonable searches and seizures (even though it, like the Second Amendment, talks about a "right of the people"). But the test for whether searches and seizures are constitutional isn't that "only the very narrowest kinds of search and seizure rules would survive the scrutiny of the courts" -- it's the far more flexible reasonableness test, coupled with some special custom-made Fourth Amendment rules.

Even the right to free speech, which the article specifically mentions, is sometimes subject to more than "the very narrowest kinds of regulation." When the government imposes content-based restrictions on speech, outside certain exceptions (such as obscenity, incitement, threats, false statements of fact, and others), these restrictions are subject to so-called "strict scrutiny." But lots of content-neutral restrictions on speech (such as volume restrictions, or restrictions on the size or placement of billboards, or a variety of other restraints) are subject to a pretty weak version of "intermediate scrutiny" -- and speech that falls within the exceptions on the grounds that it's of "no constitutional value" can be banned altogether. Ashcroft, too, is arguing that the right to bear arms is subject to certain exceptions, such as exceptions for felons, for certain types of weapons, and so on; maybe he's right about the particular exceptions and maybe that's wrong, but the notion of constitutional rights being subject to quite a few exceptions is hardly unprecedented in constitutional law.

There are lots of good arguments that can be made about the Second Amendment, and about the proper role of an Attorney General. For instance, say that an Attorney General were to conclude that most of the lower courts were reading the right to privacy, the freedom of speech, or religious freedom too narrowly, and that the Supreme Court hadn't definitively spoken on the matter. Should he take the most pro-government-power position, on the theory that he represents the government? Should he take the position that he thinks is most consistent with the Constitution's true meaning, and that is supported by the view of many scholars and some judges, on the grounds that he swore an oath to defend the Constitution? Or should he take an intermediate position, that defends all existing acts of Congress, but asserts that there's a line past which Congress ought not go? Very interesting questions.

But one can't answer these questions simply by calling the Attorney General a liar (check out the last paragraph of the article), and supporting this by citing one side's arguments and ignoring the other side's. That, unfortunately, is what the Slate article is doing.

Thursday, September 26, 2002

[Eugene Volokh,
4:54 PM]
TUESDAY'S TALK OF THE NATION PROGRAM about the First Amendment, in which I participated, is available here; thanks to Howard Bashman for finding the link.

The University of California at San Diego has ordered a student organization to delete hyperlinks to an alleged terrorist Web site, citing the recently enacted USA Patriot Act. . . .

In a letter to the Che Cafe Collective, UCSD University Centers Director Gary Ratcliff said the hyperlink violated a law that bans "providing material support to support terrorists." Ratcliff warned that the student organization would face disciplinary action if it did not immediately remove the link to FARC.

"The concern of the institution is that this could be interpreted as a violation of the law," Ratcliff said in an interview Wednesday. "What we're trying to be is pro-active here. If the FBI decided to pay attention to this matter, the repercussions would go way beyond their group because we're providing network services."

The law in question is one section of the USA Patriot Act, signed by President George W. Bush last October, which outlaws providing "material support or resources" to foreign terrorists who have been placed on a State Department list. Material support is defined as money, lodging, training or "communications equipment." . . .

The Foundation for Individual Rights in Education (FIRE) said UCSD's reading of the USA Patriot act was laughably censorious.

"I think their interpretation of materially supporting terrorism is dreadfully overbroad and a massive threat to freedom of speech," said Greg Lukianoff, FIRE's director of legal advocacy. Lukianoff said FIRE was willing to represent the Che Cafe against the university, which must abide by the First Amendment's guarantee of free speech because it is a government school. . . .

When asked whether the university would prohibit a faculty member or the student newspaper from linking to an alleged terrorist group, UCSD's Ratcliff said he was not sure. "Those are good questions to ask," he said. "As it relates to this law, it would depend on a case-by-case situation." The UCSD university attorney did not immediately return phone calls.

In April, the Groundwork Books collective, another UCSD student organization, got in trouble for linking to a different terrorist group, the Kurdistan Workers Party (PKK), which is also on the State Department's list. It has removed the link.

Last week, Ratcliff sent the Groundwork Books collective a letter saying that its members must write an essay saying they understand they broke the law and would not do it again. "Groundwork Books will be placed on probation for the 2002-2003 academic year and may be suspended and deregistered as a student organization if during this time it posts material supporting a (foreign terrorist organization) on a Web site it maintains," Ratcliff wrote.

I think that FIRE's analysis is exactly right. The statute might well not apply on its face to links, which are hard to describe as "communications equipment." But even if it is interpreted that broadly, I think the First Amendment protects people's ability to endorse, quote, and link to the Web sites of groups, whether terrorist or not. I'm fairly certain that I agree on virtually nothing with the Che Cafe Collective; but I believe they have the right to say what they want to say, and link to what they want to link to.

Of course, there are some narrow limits on such First Amendment rights, but none of these narrow exceptions apply here. And though this involves the use of university computers, the Supreme Court has long held that once a university opens up a forum to a wide range of student speech, it can't then exclude some such speech based on its viewpoint. That's true of classrooms being used after hours for school meetings (Widmar v. Vincent, 1981). It's true of subsidies for student newspapers (Rosenberger v. Rector, 1995). It must, I think, be equally true of Web hosting.

[Eugene Volokh,
3:22 PM]
MORE PROBLEMS WITH POLLING: Dick Morris has an interesting article about why telephone polls -- which are now the most reliable form of poll -- are getting less reliable. I'm quite skeptical about his bullishness on future Internet polling, for some of the reasons that he himself discloses; but his criticisms of phone polling, if factually accurate (and I have no reason to think they aren't) seem quite powerful:

In 28 states, the state legislatures have passed laws giving telephone users the right to opt out of receiving telemarketing phone calls, including public opinion surveys. More and more voters are availing themselves of this right and the pickings for telephone polling firms are getting more and more scarce.

In Connecticut, for example, 29 percent of the state's households have chosen to use the opt-out and these 500,000 people cannot be contacted by America's polling organizations. Five percent of Connecticut households join the ranks of those refusing to take telemarketing calls each year.

Even beyond the formal opt-out which makes it illegal to call certain voters when taking public opinion polls, the "hang up" factor is looming larger and larger in telephone polling. The anger which leads almost one in three of Connecticut's voters to refuse to take marketing or polling calls exists throughout the land and further reduces the ability of phone surveys to amass a statistically valid sample.

[Eugene Volokh,
3:14 PM]
MORE ON WISE MEN AND FOLLY: Salon has a great piece about a physics scandal, in which a seemingly promising young physicist seems to have manufactured experimental results (thanks to InstaPundit for the link).

The piece is a great read, and if it's accurate, I'm glad that the fraud was caught. But here's what puzzled me from when I first started reading (and what puzzled the Salon writer, too): Schön must have realized that, given his claims, people would want to build on them. Even if they didn't try to duplicate his findings out of skepticism, they'd try to use them out of self-interest. And then their future projects wouldn't work, because Schön's results were made up.

This isn't an obscure historical question, where if you can persuade some people not to check your sources, they can build on your theories without spotting the error. This is science, which is expected to work. Making up these sort of scientific findings, in a basic, building-block sort of area, seems like professional suicide. What would drive the author to do this sort of thing? Human beings are a constant puzzle.

[Juan Non-Volokh,
1:44 PM]
STRICT CONSTRUCTION FOR GLASS HOUSES: Several legal bloggers, including Howard Bashman and Glenn Reynolds, have taken note of this Writ column by Georgetown Law Professor and American Constitution Society President Peter J. Rubin. Rubin makes the fair (if not obvious) point that conservative jurists can be inconsistent in their application of a “strict constructionist” judicial philosophy. An appeal to “strict constructionism” will not resolve every legal controversy, nor is it a perfect guard against judicial mischief. As Justice Scalia noted in a famous 1989 law review article (57 U. Cinn. L. Rev. 849), even the most principled strict constructionist, will trim his sails where the philosophy will produce extreme or unprecedented results. But these concessions hardly prove that “strict construction” is a “myth” or that its alleged adherents are unprincipled ideologues.

Exhibit A in Professor Rubin’s article is the majority opinion in Gonzaga v. Doe. According to Rubin, the Gonzaga majority abandoned the “plain language” of a federal statute to deprive individuals of federally protected rights. The only problem is that Gonzaga doesn’t make Rubin’s case – and I’m afraid it’s not even close.

Here’s a quick synopsis of Gonzaga. The Federal Educational Rights and Privacy Act (FERPA) prohibits federal funding of universities which do not ensure the privacy of educational records. In this case, Gonzaga University released information about a former student, John Doe, which resulted in his inability to obtain a teacher certification. Doe was understandably upset and sued. In addition to filing various tort and contract claims, Doe sought damages under Section 1983, a federal law which provides a cause of action for citizens who are deprived of “any rights, privileges or immunities secured by the Constitution and laws” of the United States by a person acting under color of state law. The Supreme Court, 7-2, said no dice. Whatever other claims Doe had – and the state court found those other claims worth over $800,000 – the Court rejected Doe’s 1983claim. According to seven of the justices, FERPA did not create a federal right enforceable under Section 1983 – and the explicit statutory text of neither 1983 nor FERPA is to the contrary.

Rubin claims the court majority rejected Doe’s ability to bring suit for the violation of his rights “contrary to the statute’s plain language.” Whatever the merits of the majority opinion – something on which reasonable people may disagree – Rubin’s claim is wrong. The Court did not reinterpret Section 1983, nor did it contravene the explicit text of any federal statute. Rather, the majority found that there was no federal right in question. The relevant provision of FERPA limited the expenditure of federal funds for the benefit of students in federally funded institutions, but it did not create a federal right. This is clear throughout Chief Justice Rehnquist’s opinion, as well as Justice Breyer’s opinion concurring in the judgment. Even Justice Stevens’ dissent acknowledged that the relevant provision of FERPA does not create an explicit federal right. Rather, Stevens argued, a federal right could be implied under existing precedents. Again, I am not arguing that the Court majority necessarily got it right – this is a debatable point. I am suggesting that Rubin’s charge – that the opinion somehow contradicted explicit statutory text and the majority opinion had "essentially rewritten” a federal statute – is utterly without foundation. Whatever one thinks of the Gonzaga opinion, it is hardly evidence that conservative jurists are inconsistent or hypocritical in their appeals to statutory text.

[Juan Non-Volokh,
12:37 PM]
WILL THE REAL PAUL BENDER PLEASE STAND UP? The prime critic of Miguel Estrada's nomination to the U.S. Court of Appeals is Paul Bender, a law professor who supervised Estrada in the Office of the Solicitor General. Bender told reporters that Estrada is too ideological and lacks judicial temperament. Jeff Cooper finds Bender's critique persuasive. I wonder what Cooper thinks of Bender's prior evaluations of Estrada. As reported by the Wall Street Journal and NRO, Bender had quite different things to say while supervising him in the SG's office. Bender rated Estrada's work as "outstanding," and mades the following comments:
"All dealings, oral and written, with the courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner."
"Is constantly sought for advice and counsel. Inspires co-workers by example."
"Consistently flexible and creative in the performance of duties."
". . . states the operative facts and applicable law . . . with concern for fairness, clarity, simplicity, and conciseness."
". . . displays an exceptional understanding of the major factual and legal issues involved in appellate effort."
Hmmm. That sounds like Estrada has the proper judicial temperament to me.
UPDATE: Bashman reports on another positive review.
FURTHER UPDATE: Mark Kleiman -- an opponent of the Estrada nomination -- e-mails that Estrada's evaluations can be explained by the bureaucratic equivalent of grade inflation. This is a fair point, but if that were the case, why is former Clinton Solicitor General Seth Waxman supporting Estrada? Kleiman also suggests that Estrada may be "a great pit bull of a lawyer, and in the process demonstrated a lack of judicial temperament." This is certainly possible, but it is hard to square with the substantive content of the reviews, such as Estrada's "fairness" and "diplomatic" conduct. It also fails to square with other first hand account of working with Estrada (such as that noted by Bahsman at the link above), nor would it explain why Bender is the only person to have worked with Estrada who is willing to go on the record making such claims (although Bender has apparently refused more recent media interviews). All this is to say I am very skeptical.

[Eugene Volokh,
7:27 AM]
BUSHISM-OF-THE-DAY-WATCH: Reader Colin Rushing points to Wednesday's Bushism of the Day in Slate, which is:

"You see, the Senate wants to take away some of the powers of the administrative branch." -- Washington, D.C., Sept. 19, 2002

Heh, heh, heh. How uneducated. Almost as uneducated as Bush's talking about someone being "the final judge [of certain things] in the administrative branch of the government." No, wait, that was Chief Justice Taft saying that in a 1926 Supreme Court case. Or as uneducated as Bush's talking about "the President's general constitutional power to direct the administrative branch of government." No, wait, that was the U.S. Court of Appeals for the Second Circuit saying that in a 1995 case. In fact, a LEXIS search through all LEXIS-available court cases found the term "administrative branch" used over 500 times; some of the uses referred to administrative branches of particular departments or companies, but my quickie sample suggested that at least half the uses referred to the administrative agencies in the executive branch.

Now it might well have been better for Bush to say "executive branch," because the administrative branch generally seems to refer to the administrative agencies, rather than the Executive as a whole. But Bush's comment came in a speech about the Department of Homeland Security; and, as the Court of Appeals case points out, the President is in charge of most of that branch (except the relatively few independent agencies) as well as being in charge of the executive branch more broadly.

There's thus a good argument that the President is indeed technically part of the "administrative branch" of the government (it's no accident that the President and his appointees are called the Administration). But even if one defines the administrative branch more narrowly, to include just the bureaucracy, including the Department of Homeland Security, referring to the Department's boss and his deputies as part of this "administrative branch" hardly seems like a noteworthy flub.

Ah, some may say, but surely Bush hasn't read these cases -- he must have meant to say "executive branch," but somehow mixed it in his mind with "Administration" and thus said "administrative branch" instead.

Hey, who knows? I can't read Bush's mind. I suspect he didn't read the Taft opinion I mentioned, but all of us pick up terms not just from the original sources but from usage; people with whom he works might well have used the term "administrative branch" on various occasions to refer to the Executive bureaucracy, just as the courts that I mentioned used it. But more importantly, does it really make sense to publicly mock someone for a supposed flub when (regardless of the speaker's presumed intentions) the flub is actually, whether intentionally or inadvertently, an accurate or nearly accurate usage?

As I've said before, this is one of the dangers of a single-target column like "Bushism of the Day" (or, as I mentioned, of a single-target investigator like the independent prosecutor). Rather than finding quotes that are genuinely worth mocking, the author feels the pressure to find something from his target, and the bar for what's mockable necessarily gets lowered. And rather than checking out each allegation (might "administrative branch" be correct here?), the author becomes jaded or overzealous, and just assumes that his target is guilty.

This is not the first Bushism of the Day that I've criticized (I think it's about number 8 or so); and I don't even check them all (I hadn't seen this until the reader e-mailed me about it). I'm sure it won't be the last. But I wish it were the last -- I wish the Slate column, if it continues, took a bit more care: more care to carefully check its assertions, and (as I've mentioned as to other Bushisms) more care to quote the full context. Slate is generally a first-rate publication. It's a shame when it cuts corners like this for a cheap snicker.

Wednesday, September 25, 2002

[Todd Zywicki,
5:03 PM]
BEYOND THE PALE: Well, I have received two more specific historical explanations on my original observation of the origin of "beyond the pale," which link it to specific historical contexts. One alert reader tells me that "the pale" referred to the original Jewish ghetto set up in Russia in the 18th Century; or alternatively, the "English Pale," which was the portion of Ireland under English rule, and therefore, as perceived by its rulers, within the bounds of civilization. One dictionary definition states that the idiom is "usually taken" to refer to the Irish pale, which reflects some uncertainty about either the origin or transmission of this meaning. These are thus more specific idiomatic instances of the more general concept of the "pale" as a defined "boundary."

"Politics are allowed in politics, but there are limits, and there is a pale, and Gore has now shown himself to be ignorant of those limits, and he has now placed himself beyond that pale."

Now until that moment it had never occurred to me before that if one can be "beyond the pale" there must in fact be a "pale". And indeed there is--a "pale" is a collection of pointed boundary sticks that may be placed next to one another to form a boundary fence. To be "beyond the pale," therefore, is to place oneself "outside the boundary"--which seems to be a reasonable characterization of Vice-President Gore's remarks (at least as related by Mr. Kelly).

[Eugene Volokh,
12:48 PM]
OMAHA CITY COUNCIL TO VOLOKH: PFFFT. Well, OK, that actually vastly overstates my importance -- how about Omaha City Council to Volokh: nothing. But at least there was some talk of the subject, courtesy largely of a local publisher:

Despite concerns that the law infringes on the rights of law-abiding immigrants, the Omaha City Council adopted a new ordinance Tuesday setting guidelines for denying and revoking handgun permits. . . .

[The debate mostly focused on issues other than the noncitizen question.] A state liaison for the National Rifle Association said earlier this month that the NRA did not oppose the latest version. . . .

Although a California law professor and a south Omaha newspaper publisher raised questions this week about the constitutionality of the practice, the ordinance also allows the chief to deny permits to those who are not U.S. citizens -- even those who are lawful residents -- as has been the city's longtime policy.

Eugene Volokh, a UCLA law professor, argued in a guest column in Saturday's World-Herald that the practice violates the Nebraska Constitution, which says "all persons" have the right to keep and bear arms for security or self-defense, and the U.S. Constitution's equal protection clause.

Ben Salazar, publisher of the Omaha Spanish-language newspaper Nuestro Mundo, asked the council Tuesday to reconsider that part of the ordinance. He pointed out that federal and state laws do not bar all resident aliens from owning guns. Those restrictions apply only to noncitizens who are in the country illegally, are convicted criminals or have come into the country on nonimmigrant visas (such as tourists).

City Prosecutor Marty Conboy acknowledged that the ordinance doesn't precisely mirror the much more complex federal law on that point.

The council voted 5-1 to pass the ordinance without further amendment. Councilman Marc Kraft voted no. Councilman Frank Brown, whose father died Monday, did not attend the meeting.

After the vote, Salazar said he would raise the issue with the American Civil Liberties Union of Nebraska and seek to change the practice.

"It's a very cherished right," he said. "Why do we deny that to people in the Omaha community who are paying taxes, going to school, owning businesses, working toward citizenship, and are even subject to the draft?"

I do hope the ACLU takes this up -- and that the NRA changes its stance on such measures.

[Eugene Volokh,
12:44 PM]
THE WOMYN ARE STILL HERE: UCLA people have been getting flyers for a rally advocating legalization for illegal alien workers. The rally's argument isn't silly, though I'm tempted to be skeptical of such proposals (I'm not knowledgeable enough to have an informed judgment). But the amusing thing is the signatories -- not just some of the standard left-wing student groups and some labor groups, but also "Planners of Color for Social Equity" (no white planners for social equity need apply?) and, best of all, Raza Womyn de UCLA. I had thought that the "womyn" fad had ended long ago, but I guess that it's still going strong in some people's minds . . . .

[Todd Zywicki,
12:17 PM]
SO WHO ARE THESE so-called Anarchists anyway? Descending on my fair city this weekend are a group of hooligans who purport to call themselves "anarchists." But who ever heard of a pro-regulation anarchist?

Although I'm no anarchist and don't claim to be an expert on anarchism, I've known a few actual anarchists in my day (there is a long tradition of a school of thought known as "individualist anarchism" or "libertarian anarchism," such as the 19th Century individualist and abolitionist Lysander Spooner and Benjamin Tucker). And one thing I'm pretty sure of is that to be an anarchist means to allow consensual interactions among grown adults, such as free trade, freedom of contract, and free movement of capital and people. Yet from what I can tell, these anarchists want to limit free trade for a variety of reasons, such as environmental protection. They want to limit freedom of contract when it comes to allowing adults to enter into employment contracts to work in "sweatshops," to invest in corporations, and to limit investment by the World Bank and multinational corporations in the developing world.

Now, its perfectly ok to want to pass laws to limit behavior that you don't like, but if that is what you want to do, doesn't that fundamentally disqualify you from calling yourself an "anarchist"?

[Eugene Volokh,
9:34 AM]
ANOTHER INTERESTING PERSPECTIVE ON THE SEVENTEENTH AMENDMENT, from Clayton Cramer. I'm not sure I fully agree with his analysis, but it's quite thought-provoking.

Thanks for the discussion concerning "nuke-lee-ur" vs "nuke-you-lur." I teach linguistics at San Diego State University, and this topic comes up every semester, usually in the form of the somewhat indignantly stated "Why can't people simply say that word the right way?"

Most of my students will go on to become elementary school teachers, and they constantly fret about issues of usage and prescriptivism vs descriptivism. They sincerely believe that there is always a Right Way and a Wrong Way. It's an uphill battle to get them comfortable with the notion that "rightness" is situational and that it is possible to be both descriptive and prescriptive. I'm descriptive as all get out when it comes to how people speak, but once those words are on paper and there's a grade involved, I turn in to the Complete Prescriptive Grammar Queen . . . up to a point. For example, I never notice split infinitives and deferred prepositions, but woe to the student whose paper is filled with faulty parallelism, sentence fragments and erratic pronoun-antecedent or subject-verb agreement.

As you might imagine, linguists frequently catch a lot of flak for being descriptive. Mark Halpern once went after Geoffrey Nunberg on this very issue. British linguist Deborah Cameron also addresses the descriptive-prescriptive argument and attendant issues of language purity and linguistic prejudice in Verbal Hygiene.

Your point about "ice cream" is very apt. The process that changed "iced cream" to "ice cream" is called consonant cluster reduction, by the way. Represented as a phonological process, it looks something like this: /ayst krim/ (the phonemic, abstract representation) becomes [ays krim] (the phonetic, concrete pronunciation). The /t/ occurring the in the middle of the /-st kr-/ cluster is "reduced" to nothing.

The same process occurs with "whipped cream," "iced tea," and even "boxed set." (Say them rapidly in a sentence and you'll see what I mean.) In the case of "ice cream" we eventually changed the spelling to reflect the phonetic change. In the case of "iced tea," I've seen it printed as "ice tea" on menus. I've also seen "box set" -- on a display sign at Barnes & Noble, no less!

About written English: I think it is instructive to remember that what we now view as The Standard for formal written English occurred, in part, because of what linguist John McWhorter terms "geopolitical accident," not because one particular version was intrinsically better. McWhorter presents an excellent discussion on this topic in his book, The Word on the Street.

I'd be cautious about stating that there is a need to "break" children from speaking Black English. What I stress to my students is that as teachers, they will need to help students who speak non-mainstream dialects learn additional linguistic "codes" for communicating effectively and appropriately in a variety of social and professional contexts. Lisa Delpit provides some very good insights into this issue in Other People's Children.

Dialect vs. accent: Dialect refers to regional, ethnic and/or social variations within a single language. Dialect encompasses various aspects of the language -- syntax, morphology, lexicon, phonology. Accent refers to the pronunciation of a given language by a non-native speaker of that language; for example, a native Danish speaker is said to speak English with a Danish accent. However, most lay persons use the term accent to refer to dialect-based variations in pronunciation. Hence, the "Boston accent" thang.

Personally, "nuke-you-lur" bothers me not at all. Heck, I say "crik," "ree-ul-a-tur," and "wadn't" for "wasn't". I have friends who say "bidness" instead of "business." My sister calls it a "battry" not a "battery." The point is . . . the point is that American English would be a sad, dull thing indeed without these variations.

Finally, Kleiman muffs it in his discussion of Black English. "We be okay" is not okay, not unless y'all are habitually okay. Then it is fine. Otherwise, "We okay" is the correct form. Check William Labov, Walt Wolfram or John McWhorter for more detailed discussions on this.

I was at an Institute for Humane Studies seminar in 1997, and several writers, including Carolyn Lochhead, James Glassman, and Lynn Scarlett, were telling us about techniques for writing. They kept saying, over and over again, "don't personally attack your opponents."

Finally, I couldn't resist. I raised my hand, and said, "You keep saying we shouldn't personally attack our opponents, but every great libertarian writer has done that. John Locke starts out the First Treatise by attacking Robert Filmer for writing nonsense. Frederic Bastiat gives Montesquieu all kinds of hell. And Ayn Rand, and H.L. Mencken and Florence King . . . .?"

Carolyn Lochhead interrupted and said, "Let's put it this way: when you can write like H.L. Mencken -- then you can write like H.L. Mencken."

Well put.

Tuesday, September 24, 2002

Invective has a perfectly valid role in publicly published writing: I rarely expect it to be persuasive, but -- at its best -- it can be very entertaining. That is what I tried to do, for example, when I made my ad hominem cracks about Aaron Sorkin earlier today: I didn't think it would convince any West Wing fan to give up on his favorite show, but I hoped it might give someone who already agreed with me a larf. Maybe I succeeded and maybe I failed, but persuasion simply wasn't what I was up to.

The problem with the posts Eugene is criticizing is that they aren't just unpersuasive. They're witless. Ya'll should feel free to let me know when you think I'm guilty of that myself.

Jesse's point is a fair one; I agree that really good rants can be very amusing, though I guess I find myself alienated even by them (a matter that's part my sense of manners and part my sense of esthetics, and thus distant from the more pragmatic concerns that I focused on in my posts). But more importantly, I agree that this is a very tough genre to master; and if you fail, then you come across not just as not very funny -- an inherent risk for all humor -- but as not very funny and at the same time boorish.

[Eugene Volokh,
2:14 PM]
LIBEL: Quare queries, and we respond. Hanah points to some silly supposed "humor" pieces in her college paper that purport to be written by leading columnists such as Bill O'Reilly, but are of course written by students who are trying to mock them. The pages are on "a humor page called 'The Last Word'. This page is in no way identified as a humor page, though everyone (except the new freshmen) knows that the last page of the paper has always been the humor page." Is this libel, asks the lovely Hanah?

It is almost certainly not, responds your correspondent. To be constitutionally punishable under the libel exception, speech must contain a false statement of fact -- readers must be likely to perceive it as making a factual assertion, an assertion that ends up being false. A statement's being true is a defense to libel, but so is a statement's being fictional -- literally false, but understood by virtually all readers as being false.

Both the location of the supposed O'Reilly piece (on a page that may not be marked as a humor page, but that is seen by most readers as a humor page) and its ridiculousness should make clear to virtually all readers that this is just a gag, and not really a Bill O'Reilly column. Readers won't see it as a statement of fact ("this piece really is written by Bill O'Reilly"), so it isn't a false statement of fact, so it isn't libel, so it's constitutionally protected.

I can imagine counterarguments based on the theory that some readers who don't get the gag and don't know that the page is a humor page (for instance, readers who happen upon the article online) will think that O'Reilly did indeed write the article. And it turns out that it's not clear what happens if indeed a substantial minority of people think an assertion is factual, but a majority recognizes that it's fictional or humorous. But here, it seems quite likely that virtually everyone will see the piece as a gag. So the column may not be great satire, but it's not legally actionable, either.

[Todd Zywicki,
11:13 AM]
THE MOVEMENT TO REPEAL THE 17TH AMENDMENT received a boost this week as syndicated columnist John Dean (yes, that John Dean) joined the chorus of critics of the 17th Amendment on the CNN Website. Ok, perhaps it is more of a barbershop quartet than a full-blown chorus, but Dean's terrific column on the 17th Amendment (based on research of your humble blogger) questions the wisdom of this constitutional innovation. Under the original Constitution of 1787, United States Senators were elected by the state legislatures, rather than directly by the people. In 1913, however, the 17th Amendment was enacted, which adopted the current system of direct election of Senators. As the Framers understood, election of Senators by state legislatures was a key mechanism of self-protection by the states against federal power. As Madison notes in Federalist No. 51, the key to enforceable constitutional constraints is that politicians must find it in their self-interest to protect constitutional limits and individual rights. "Ambition must counteract ambition. The interest of the man must be connected with the constitutional rights of the place." Moreover, election by state legislatures was intended to frustrate special interest "factions" by basing the two houses of Congress on different constituencies (the people in the House, the states as states in the Senate). Thanks to John Dean for uncovering this fascinating and puzzling episode in constitutional history--and perhaps the solution to the campaign finance reform debate?

As anti-globalization protestors descend on the Nation's Capitol (and my hometown) this weekend, Starbucks managers will want to make sure that their insurance plans are up-to-date. But an article in today's Wall Street Journal notes that far from being a menace, small independent coffee shops are thriving under the Starbucks umbrella. Turns out that Starbucks "educates" the public on the virtues of good coffee, expanding the market so that there is plenty of coffee-drinkers to go around. In turn, competition has forced the independents to upgrade quality and comfort. Ironically, many of those thriving tried to prevent Starbucks from moving into their neighborhoods originally; one new chain specifically sets up in the shadow of Starbucks. Hmmmm, maybe there's a lesson here for the protestors about the value of capitalism in the rest of the world?

[Eugene Volokh,
8:31 AM]A KIPLING STANZA THAT I WAS REMINDED OF RECENTLY (and of course it can often apply to other countries besides England):

If England was what England seems,
And not the England of our dreams,
But only putty, brass, and paint,
How quick we'd drop her -- but she ain't!

Slate admits that it misfired last month in reporting that National Rifle Association President Charlton Heston would have to give up his guns if his Alzheimer's disease becomes more acute. But after being contacted by Weblogger (and UCLA law professor) Eugene Volokh, Slate attached a correction seen only by those who clicked on the original story. (Turns out Heston wouldn't lose his Second Amendment rights without a court ruling that would likely require an involuntary hospitalization.) Editor Jacob Weisberg says Slate provided a link to Volokh's criticism but generally doesn't display corrections separately. "I'm not sure people are going to click on a correction about a piece they may or may not have read," he says. "My feeling is, the bigger the mistake, the bigger the correction."

[Eugene Volokh,
7:24 AM]
TALK OF THE NATION: Unless plans change (and they always might), I should be on NPR's Talk of the Nation today from 3:10 or so Eastern time until 3:45 or so. I'll be discussing, among other things, the Freedom Forum First Amendment Center's State of the First Amendment 2002 survey, which I've reported on and mildly critized on this very blog.

Monday, September 23, 2002

[Eugene Volokh,
9:28 AM]
NAME-CALLING: About a week ago, I saw a bunch of links -- one from a blog that I very much respect -- to a blog post that was aimed at debunking the writings of one Ben Shapiro, a conservative columnist. I'd never read Shapiro, but I read him because of that post; and his piece proved to be a pretty weak attack on the nonreligious, a group to which I myself belong. The article richly deserves criticism, among other things for this little gem:

Jerry Falwell said after Sept. 11 that abortionists, feminists, the gays and lesbians who promote homosexuality as a natural lifestyle, the American Civil Liberties Union and all those who try to secularize America (in short, the PC crowd) bear some responsibility for Sept. 11.

While his statement may have been unpopular, it was true, at least in the larger sense. If we pillory those who defend traditional moral values, we seem weak. Why would any terrorist fear a country that treats the Boy Scouts like the KKK? If we treat the moral as trivial, if we make it seem as though our lives have no value, how can we expect others to respect the value of our lives?

Yes, I really see Bin Laden saying "Have you heard what Americans are doing to the Boy Scouts? Shocking!" And even if Bin Laden does have contempt for us because we don't kill (or even imprison) homosexuals, and we give women equal rights, is that really much of an argument for holding gays and feminists responsible? Bin Laden probably has contempt for Americans because there are lots of influential Jews here; does that make American Jews responsible for September 11, too?

So Ben Shapiro's arguments (this one and many others) are easy to criticize. But what exactly are we to make of a post that starts out by calling him . . . "a jesus-hugging pipsqueak" (that's the post that got the links that I mentioned). The next paragraph goes on to talk about how Shapiro is supposedly "[w]aiting for his pubic hair to grow." Then, more: "[T]eenage virginal squealer." "Ben, your a teenager now, you're a little old to be pissing your pants." "[Z]itface." Someone who "ma[kes] idotic generalisations backed up with the analysis of a crybaby 8-year old." "[F]uckwit." "[P]ants-pissing weasel." Then a return to the comparatively mild "wimp," "dork," "nerd," and "dweeb."

Is this sort of invective either fair or effective? I think it's neither, but let me stick to effectiveness:

People who get so angry are rarely likely to be entirely logical in their arguments, and people know that. We see something in the insults themselves -- apparently, Shapiro is quite young; but how is this a valid substantive argument against his position? The author apparently got so enraged that he decided to condemn him (in my view, quite unsoundly) for his youth. What other flaws in reasoning might there be?, a reasonable reader might conclude.

Invective almost never persuades people, either those on the other side or, more importantly, those in the middle. Is it really likely that someone who sympathizes with Shapiro's view, but is open to persuasion -- or someone who has no opinion on the subject, and is open to persuasion -- will be persuaded by a barrage of insults? Or is it more likely that the invective will lead the reader to sympathize with the victim, rather than to focus on the powerful substantive arguments against the victim's position?

Insults reflect badly not just on the author, but to others whom readers associate with the author. This might not be fair, but there it is. When one writer who identifies himself as a defender of secularism comes across as rude, casual observers will tend to conclude that defenders of secularism are generally rude. When a reader who rarely reads blogs comes across this one, he's more likely to infer that what he'd heard is right -- the Internet generally and blogging in particular is a rude place where the absence of editors means a decline in civility. And then he may well be less interested in reading blogs, or at least blogs that come from this political orientation; or when he hears that Ted Rall has been "Fisked," he'll assume that fisking tends to refer to vitriol, rather than to substantive argument.

There are other problems with insultblogging as well; and the existence of these problems suggests that you can indeed catch more flies with honey than you can with vinegar. Yes, sometimes spreading the vinegar is fun, but it hardly ever does any good (on extremely rare occasions, extraordinarily wittily constructed rants might actually be effective, but this is a very hard genre to master). And if you just want the catharsis of venting your rage, why not just type the insults in Word, save them on your hard drive, and then blog something substantive that might actually persuade people?

Now I apologize if I'm sounding schoolmarmish, but as you can tell from the third point above, I feel I have an interest here: I want blogging, public-issue blogging, and centrist/libertarian/free-market/sensibly-pro-war public-issue blogging to succeed. I want our views to prevail. I see lots of posts like the one above (though rarely at quite that intensity), and I think -- if these smart people just cut back on the insults and focus on the substantive argument (and I stress again that the post that I refer to had some good substantive arguments, and the post to which it was reacting deserved serious criticism), our views would be so much likelier to prevail.

Let me conclude with one question: When you see ideological opponents stoop to a barrage of personal insults, do you think that they've scored a political point? Or do you smile and think "Go ahead, buddy, dig your own argument's grave -- no-one will take you seriously now"? And if it's the latter, why give the other side the satisfaction of saying the same about you?

[Eugene Volokh,
4:43 AM]
IMMIGRANTS' RIGHTS: Immigrants' rights activists (or, to be precise, activists for the rights of noncitizens) ought to jump on this item -- the city of Omaha is planning to reenact its ordinance that, among other things, prohibits noncitizens from owning handguns. The City Council is planning to vote on a revised version on the ordinance on Sept. 24. (The ordinance is by no means mandated by state law; Nebraska law has no such provision.) I have an op-ed on the subject in the Omaha World-Herald Saturday.

What's the basis for denying noncitizens this constitutional right? Even setting aside the Second Amendment (which, for historical reasons, might indeed be plausibly seen as limited to citizens), the Nebraska Constitution, art. I, sec. 1 -- in a clause enacted in 1988 -- provides that

All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.

That's all persons, with inherent and inalienable rights. Seems to me that noncitizens are just as much in need of the ability to defend themselves, their families, their homes, and others, and just as entitled to engage in recreational use of guns (even if they may possibly be excluded from lawful common defense or even hunting because of their noncitizen status).

What's more, the Supreme Court has held that the Equal Protection Clause of the federal Constitution bars states from discriminating based on citizenship status, except in a few narrow situations. I actually think the Court erred in this, but this is now the law, and should block Omaha from doing what it's doing.

In fact, the Michigan Supreme Court held this sort of provision unconstitutional as early as 1922, in People v. Zerillo, 219 Mich. 635 (1922), reasoning that "our Constitution is inclusive of the right of every person to bear arms for the defense of himself." State v. Beorchia, 530 P.2d 813 (Utah 1974), upheld a ban on noncitizens owning guns, but with virtually no reasoning. The court concluded simply that it was "quite evident" from a then-existing constitutional provision which said "The people have the right to bear arms for their security and defense, but the Legislature may regulate the exercise of this right by law" that "the Legislature had sufficient power to enact the statute in question" -- though how the right to regulate the exercise of a right allows the prohibition of certain people owning guns was unexplained; and I hope that the new Utah right to bear arms provision, which is quite similar to Nebraska's and which was enacted in 1984, would be interpreted in a more rights-protective way.

Many recent complaints about supposed oppression of immigrants have been quite unjustified -- arresting noncitizens for immigration law violations, for instance, is perfectly proper; likewise for interviewing aliens who are citizens of certain foreign countries. But here a city council seems to be about to reenact an ordinance that denies immigrants a right that's clearly secured by the Nebraska Constitution, and quite possibly violate the federal Equal Protection Clause as well. There's a real rights violation for you.

REACTIONS: One response on the Omaha World-Herald's Web site to my op-ed:

The "clearly established constitutional right" to bear arms is reserved for citizens (born and naturalized). Mr. Volokh is suggesting that we allow "law-abiding" non-citizens to stockpile weapons. A migrant worker's only loyalty to this country is a paycheck. That is not enough to let him carry a gun. This independent voter and Nebraska resident does not want or need a West Coast lawyer to tell him who gets what[.]

I wonder exactly where the writer got the factual assertion underlying the first sentence -- not, it seems to me, from the Nebraska Constitution. It was, after all, voters and Nebraska residents and not dirty carpetbagger lawyer scalawags who enacted the constitutional language; and they said "all persons" and not "all citizens" (a term that does appear in other provisions of the Nebraska Constitution, but not in this one).

Other responses (by the way, as of the time I last checked, they were nearly all negative, except for a nice post by Glenn Reynolds) mostly lambaste me for suggesting that illegal aliens should be allowed to have guns; I also got two laughably, over-the-top fulminating direct e-mails that made the same claim (I hesitate to call it argument, because they actually didn't have much by way of substantive argument, though they did contain plenty of other stuff). Of course, in my op-ed, I used the qualifier "law-abiding" four times to describe the people whom I was referring to, and on top of that specifically said that I was talking about "people who are lawful guests of our country." Illegal aliens who are caught with guns may be deported; they don't have the right to have guns in Nebraska because they don't have the right to be in Nebraska. But "law-abiding" "lawful guests," which is to say noncitizens who aren't illegal aliens, seem to be clearly covered by the Nebraska right to bear arms guarantee.

[Eugene Volokh,
4:36 AM]
SUPREME COURT PREVIEW: This weekend, I had the pleasure of being at the William & Mary Institute of Bill of Rights Law Supreme Court Preview, a very cool and interesting event about the coming Supreme Court Term. The panelists were mostly journalists and academics, and the audience also included many journalists as well as others. The opening act was mock arguments in the Lockyer v. Andrade case, which involves a Cruel and Unusual Punishments Clause challenge to California's "Three Strikes" law; Beth Brinkmann, formerly of the Solicitor General's office, argued for the state, and Erwin Chemerinsky, a USC conlawprof who I believe will actually be arguing in front of the Supreme Court itself on this, argued for the defendant. The panel was Joan Biskupic (USA Today), Linda Greenhouse (N.Y. Times), Marcia Coyle (National Law Journal), Tony Mauro (Legal Times & American Lawyer Media), David Savage (L.A. Times), Charles Lane (Washington Post), Stephen Smith (University of Virginia) lawprof, who clerked on the Court the same year that I did), Alan Meese (William & Mary lawprof), and me. We voted 6-3 in favor of the state, holding that the defendant's sentence -- 50 years to life where the crimes of conviction were two felony petty thefts, but the record included five other felonies and two misdemeanors -- was not unconstitutional. We'll see what the Court itself does with this soon enough . . . .

I was also on the free speech panel, where I talked about the library pornography case (readers of the blog got a preview of my comments several months ago), which the Court is likely to decide this Term; and on the upcoming issues panel, where I talked about the Pledge of Allegiance case and the Ninth Circuit case striking down the exclusion of theology students from a generally available college aid program (both also discussed on the blog, here, here, and here, among other places). What an excellent conference -- the other panelists were all superbly qualified and knowledgeable, and many of the audience were very well-informed, too. Thanks to the William & Mary people (and especially Prof. Neal Devins, the conference organizer) for inviting me!